5T ATE OF ALABAMA

ETHICS COMMISSION.......

MAILING ADDRESS

P.O. BOX4840MONTGOMERY,AL

36103-4840

STREET ADDRESS

RSA UNION100 NORTHUNIONSTREET

SUITE 104MONTGOMERY,AL 36104

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COMMISSIONERS

John H. Watson,ChainnanLewis G. Odom, Jr., Esq., Vice-ChainnanRussell Jackson Drake, Esq.J. Harold Sorrells

Raymond L. Bell, Jr., Esq.

James L. Sumner, Jr.Director

TELEPHONE (334) 242-2997

FAX (334) 242-0248WEB SITE www.ethics.aIalinc.net

June 6, 2001

ADVISORY OPINION NO. 2001-35

Thomas J. ByrneRight of Way SpecialistAlabamaDepartment of TransportationSeventh DivisionOffice of DivisionEngineerP.O. Box 647Troy, Alabama 36081-0647

RevolvingDoor/Former Right Of WaySpecialistWith The AlabamaDepartment OfTransportation (ALDOT) AcceptingEmploymentWith Contractor DoingBusiness With ALDOT.

A former Right of Way Specialistwith theAlabamaDepartment of Transportation mayaccept employmentwith Volkert &Associates, an entity contracting withALDOT, when he has not personallyparticipated in the direct regulation, audit,investigation, or review of Volkert's work,nor was he involved in contract negotiationsbetween Volkert and ALDOT.

Upon accepting employmentwith Volkert &Associates, a former Right of Way Specialistwith the AlabamaDepartment ofTransportation may not, for a period of twoyears after leaving public service, representVolkert & Associates in any dealings beforeALDOT.

Thomas J. ByrneAdvisory OpinionNo. 2001-35Page two

A former Right of Way Specialistwith theAlabamaDepartment of Transportation maywork on projects on behalf of Volkert withALDOT; however, he may not useconfidential information obtained in thecourse of his employmentwith ALDOT toassist Volkert in either performing the termsof the contract or in obtaining new businesswith ALDOT.

Dear Mr. Byrne:

The AlabamaEthics Commissionis in receipt of your request for an Advisory Opinion ofthis Commission, and this opinion is issued pursuant to that request.

OUESTION PRESENTED

Maya former Right of Way Specialistwith the AlabamaDepartment of Transportationleave the AlabamaDepartment of Transportation and accept employmentwith Volkert &Associates, a business under contract with the AlabamaDepartment of Transportation?

FACTS AND ANALYSIS

The facts as have been presented to this Commission are as follows:

Thomas 1. Byrne has been with the Alabama Department of Transportation since Augustof 1999. He was hired as a Right of Way Specialist. Mr. Byrne is also a Certified Real PropertyAppraiser.

Mr. Byrne has approached several consulting firms and agencies about doing appraisalwork for them on a full-timebasis. He states that some of these agencies do work for the Stateon a regular basis.

Mr. Byrne's job with ALDOT is to help the Chief Appraiser in processing the appraisalswhich have been reviewed for negotiation by Volkert and Earth Tech. He states that the contacthe has with both of these companies is limited to appraisal review only.

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Thomas J. ByrneAdvisory OpinionNo. 2001-35Page three

Mr. Byrne states that his only dealingswith Volkert & Associates have been to drop offand retrieve appraisals after they have been reviewed by Volkert. These appraisals are not doneby Volkert, but by individualfee appraisers contracted by the State of Alabama.

Mr. Byrne reviews these appraisalsand turns them over to his supervisor for furtheraction.

Mr. Byrne states that Volkert & Associates leased an officebuilding in Elba, Alabama, forthe first of March until the completion of the lock and key contract on U.S. 84, betweenAndalusia, Alabama and Enterprise, Alabama. The contract Volkert had with the State involvedroad design, appraisal review, relocation, and negotiations/acquisitions. Volkert had the entirecontract for preconstruction, trom drawing the maps and design of the road, to the actualacquisition of the property for the new road. Volkert reviewed the ALDOT contractedappraisals, and after Volkert reviewed the appraisals, if Volkert had any questions about theprocedures or analysisused by the ALDOT contracted appraiser, they would request additionalinformation trom that appraiser. This additional information sometimes changes the value, but ifthese values change, it is due to the ALDOT contracted appraiser choosing to change the valuedue to a mathematical mistake or a possible omission. Only the ALDOT contracted appraiser isto establish value. After Volkert reviews the supplementaIpages, the appraisal and thesupplemental pages are sent to ALDOT for a second review. If the second review turns up anymore mistakes, then another letter is forwarded to the ALDOT contracted appraiser by way ofVolkert. If more supplemental pages are required trom the ALDOT contracted appraiser, thepages are sent to Volkert and then forwarded to ALDOT. After all questions are answered andcorrected by the ALDOT appraiser, the Right of Way Engineer recommends an approved offerfor the acquisition. The appraisal package is assembled and goes to the negotiator for purchase.

As Mr. Byrne states, Volkert was in the process of getting themselves in an office locatedin Elba, Alabama. Mr. Byrne has had no contact with Volkert, other than personal conversationsin Elba, at seminars and appraisal schools. Mr. Byrne approached Volkert & Associates about aposition with them on approximately April 15, 2001. On April 24, 2001, AllOT received itsfirst reviewed appraisal, and Mr. Byrne began his working relationship with Volkert & Associates.

He states that his duties consist of:

1) receiving the appraisal reports trom the ALDOT contracted appraiser, stampingthem in and recording the receipt in ALDOT's office;

2) deliveringthe appraisal reports to Volkert and other consultants for review;

Thomas 1. ByrneAdvisory OpinionNo. 2001-35Page four

3) retrieving reviewed appraisal reports;

4) reviewing the ALDOT contracted appraiser's report again; and,

5) preparing approval letter for Right of Way Engineer and appraisal package fornegotiations.

Mr. Byrne reiterates that the appraisals are not done by Volkert, but are done by anALDOT contracted individualfee appraiser.

Mr. Byrne further states that he does not approve offers for negotiations, monitor or sign-off on any Volkert contracts, or review any of their appraisals or review their values.

The AlabamaEthics Law, Code of Alabama. 1975, Section 36-25-1(23) definesa publicemployee as:

"(23) PUBLIC EMPLOYEE. Any person employed at the state, county, ormunicipal level of government or their instrumentalities, includinggovernmentalcorporations and authorities, but excluding employeesof hospitals or other healthcare corporations including contract employees of those hospitals or other healthcare corporations, who is paid in whole or in part trom state, county or municipalfunds. For purposes of this chapter, a public employee does not include a personemployed on a part-time basis whose employment is limitedto providingprofessional services other than lobbying,the compensation for which constitutesless than 50 percent of the part-time employee's income."

Section 36-25-13(b) states:

"(b) No public employee shall serve for a fee as a lobbyist or otherwise representclients, includinghis or her employerbefore the board, agency, commission,ordepartment, of which he or she is a former employee for a period of two yearsafter he or she leaves such employment. For the purposes of this subsection, suchprohibition shallnot include a former employee of the Alabamajudiciary who as anattorney represents a client in a legal, non-lobbyingcapacity."

Section 36-25-13(c) states:

"(c) No public official, director, assistant director, department Ofdivisionchiet:purchasing or procurement agent having the authority to make purchases, or anyperson who participates in the negotiation or approval of contracts, grants, or

Thomas J. ByrneAdvisory Opinion No. 2001-35Page five

awards or any person who negotiates or approves contracts, grants, or awardsshall enter into, solicit, or negotiate a contract, grant, or award with thegovernmental agency of which the person was a member or employee for a periodof two years after he or she leaves the membershipor employment of suchgovernmental agency."

Section 36-25-13(d) states:

"(d) No public officialor public employee who personallyparticipates in the directregulation, audit, or investigation of a private business, corporation, partnership, orindividual shallwithin two years of his or her departure ftom such employmentsolicit or accept employment with such private business, corporation, partnership,or individual."

Section 36-25-8 states:

"No public official,public employee, former public officialor former publicemployee, for a period consistent with the statute of limitationsas contained in thischapter, shalluse or disclose confidential informationgained in the course of or byreason of his or her position or employment in any way t~ could result infinancialgain other than his or her regular salary as such public officialor publicemployee for himselfor herself: a familymember of the public employee or familymember of the public official, or for any other person or business."

In addition to asking whether or not he may accept employmentwith Volkert, Mr. Byrneasks what other general restrictions and/or prohibitions may apply.

In December of 1997, the Ethics Commissionrendered Advisory OpinionNo. 97-82,which held that:

"A former attorney with ADEM is not prohibited trom assisting in matters relatingto his law firm's clients and ADEM, but is solely prohibited ftom personallyappearing on his clients' behalf."

That opinion went on to state that:

"A former attorney for ADEM may not use confidential information obtainedduring the course of his employment in any manner that would assist the law firmor the law firm's clients in dealing with ADEM and ADEMC."

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Thomas J. ByrneAdvisory OpinionNo. 2001-35Page six

Based on the facts as presented, it would not violate the "Revolving Door" provisions ofthe Alabama Ethics Law for Mr. Byrne to accept employmentwith Volkert & Associates;however, he may not, for a period of two years after leavingpublic service, represent Volkert orVolkert's clients before ALDOT.

In addition, while he is not prohibited ITomworking on Volkert projects with ALDOT, hemay not use confidential information obtained in the course of his employmentwith ALDOT, toassist Volkert in any manner.

Based on the facts as provided and the above law, a former Right of Way SpecialistwithALDOT may accept employment with Volkert & Associates, an entity contracting withALDOT, when he has not personally participated in the direct regulation, audit, investigation, orreview of Volkert's work, nor was he involved in contract negotiations between Volkert andALDOT.

Additionally,upon accepting employmentwith Volkert & Associates, a former Right ofWay Specialistwith ALDOT may not, for a period of two years after leaving public service,represent Volkert & Associates in any dealingsbefore ALDOT.

Further, a former Right of Way Specialistwith the AlabamaDepartment of Transportationmay work on projects on behalf of Volkert with ALDOT; however, he may not use confidentialinformation obtained in the course of his employmentwith ALDOT to assist Volkert in eitherperforming the terms of the contract or in obtaining new business with ALDOT.

CONCLUSION

A former Right of Way Specialistwith the AlabamaDepartment of Transportation mayaccept employment with Volkert & Associates, an entity contracting with ALDOT, when he hasnot personally participated in the direct regulation, audit, investigation, or review of Volkert'swork, nor was he involved in contract negotiations between Volkert and ALDOT.

Upon accepting employment with Volkert & Associates, a former Right of Way Specialistwith the Alabama Department of Transportation may not, for a period of two years after leavingpublic service, represent Volkert & Associates in any dealingsbefore ALDOT.

A former Right of Way Specialistwith the AlabamaDepartment of Transportation maywork on projects on behalf of Volkert with ALDOT; however, he may not use confidential

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Thomas J. ByrneAdvisory OpinionNo. 2001-35Page seven

information obtained in the course of his employmentwith ALDOT to assist Volkert in eitherperforming the terms of the contract or in obtaining new business with ALDOT.

AUTHORITY

By 5-0 vote of the Alabama Ethics Commission on June 6,2001.

H. Watson,a1f

AlabamaEthics Commission